1987 PLP 295 (SCMR)

SAAD SAOOD JAN, J.‑‑ This is an appeal from the order, dated 11‑1‑1986 of the N.‑W.F.P. Service Tribunal whereby on appeal by respondent No.3, the appointment of the appellant to the post of Chief Laboratory Technician, Mardan, was set aside.

2. The appellant joined service in the Health Department on 11‑5‑1968 as Junior Laboratory Assistant. At that time the para‑medical staff, such as Laboratory Assistants, Laboratory Technicians, B10od Bank Assistants and Blood Bank Technicians, formed a single cadre. On 5‑10‑1983 the Provincial Government reorganized the para‑medical services and' spilt them into two separate cadres. One was named as the Laboratory Technicians cadre and the other as the Blood Bank Technicians cadre. For each cadre separate rules were framed which prescribed the qualifications for the staff and the mode of making appointments to the posts allocated to it. Those who were already in service were given an option to indicate the cadre in which they would like to serve. But his letter, dated 12‑11‑1983 the appellant expressed his option in the following manner: "I am the senior most Laboratory Technician working in the Blood Bank since 1967 in various hospitals of the N.‑W.F.P. I submit my name for including in the Blood Cadre being trained from the institute of Blood transfusion West Pakistan Lahore in 1967. Besides this, I am B.Sc. Medical Technologist and also completed the Health Laboratory Technology course from Australia. In case the post of Laboratory Technician is upgraded to B.P.S.‑16 I shall be repatriated to the post." In accordance with the preference exercised by him the appellant was taken on the Blood Bank Technicians cadre and was posted as Blood Bank Technician in Grade‑9 in the District Headquarters Hospital as Mardan. Some of the posts in his cadre were in Grade‑

11. He was promoted to this grade on 26‑1‑1984.

3. In July, 1984 the Provincial Government created two posts of Chief Laboratory Technicians at Mardan and Peshawar in the Laborator5 Technicians cadre and one post of Chief Blood Bank Technician in the Blood Bank Technicians cadre at Peshawar. All the three posts were in Grade‑

16. On his own request the appellant was promoted on 30‑12‑1989 to the post of the Chief Blood Bank Technician and posted at the Lady Reading Hospital at Peshawar.

4. Apparently the appellant was not satisfied with his posting at Peshawar and wanted to go back to Mardan. But then there was no post in Grade‑16 available in his own cadre at Mardan. He could not be appointed to the newly created of Chief Laboratory Technician which was available at Mardan as it fell in a cadre different from the one opted by him. Faced with this situation he sought a transfer to the cadre of Laboratory Technicians. In support of his request he relied upon his letter of 12‑11‑1983 wherein he had stated that in the event the post of Laboratory Technician was up‑graded to B . P . S . ‑16 he should be repatriated to that post. In this context he submitted two representation to the Director of Health Services. The fate of the first representation which was made on 10‑11‑1984 is not known. On the second representation which made on 28‑1‑1985 the Director, in his forwarding note to the Provincial Government, observed that if the appellant was allowed to come back to the Laboratory Technicians cadre he would be treated at the bottom of the list of those already therein. However, that may be, on 27‑6‑1985 the Minister of Health, made the following order on the representation: "A perusal of the option exercised by Mr. Muhammad Karim reveals that he had given conditional option for the Blood Bank Cadre stating clearly that if the Laboratory Technician post is upgraded to B . P . S . ‑16 , he would be repatriated to that post. This conditional option was never objected to by the Department. Moreover, the post of Laboratory Technician at D.H.Q Hospital, Mardan has been upgraded to that of Chief Laboratory Technician in B.P.S.‑16, and in the Government sanction it is specificationally mentioned that this upgradation of the post has been made only in view of the high qualifications of the present incumbent (i.e. Mr. Muhammad Karim). Taking into consideration the conditional option coupled with the contents of the Government sanction, there is every justification for posting of Mr. Muhammad Karim to the upgraded post of Chief Laboratory Technician at D.H.Q. Hospital, Mardan." In pursuance of this order the Director of Health Services by an order, dated 7‑7‑1985 allowed the appellant to join the cadre of Laboratory Technicians and posted him as Chief Laboratory Technician at the District Headquarters Hospital at Mardan.

5. Syed Muhammad Hussain, respondent No. 3, who was the senior member in the cadre of Laboratory Technicians challenged the order, dated 7‑7‑1985 of the Director of Health Services before the Service Tribunal. The Tribunal accepted the appeal and set aside the order of the Director on the grounds that the appellant could not be regarded as member of the Laboratory Technicians cadre, that his appointment as Chief Laboratory Technicians could only be regarded as direct appointment to the post and that as under the rules applicable the said post could be filled only by promotion from among the Laboratory Technicians, his appointment thereto was illegal. As regard the condition, which the appellant had mentioned in his letter of 12‑11‑1983, the Tribunal was of the opinion that it was never accepted by the Government.

6. Leave to appeal was granted to the appellant to consider, mainly, the question whether the Service Tribunal had the jurisdiction to entertain the appeal of respondent No. 3 because no terms and conditions of his service were violated by the Director when he posted the appellant as Chief Laboratory Technician. 7.As already mentioned the post of Chief Laboratory Technician fall in the cadre Laboratory Technicians. Under the rules applicable to this cadre the said post was to be filled by promotion on the basis of seniority‑cum‑fitness from among the Laboratory Technicians. By operation of section 9, N.‑W.F.P. Civil Servants Act, respondent No. 3 who the most senior member of the cadre, was eligible for promotion to this post. It was not the case of the appellant that respondent No. 3 too was considered for the post before he was appointed thereto. Respondent No. 3 could, therefore, legitimately feel aggrieved by the introduction of a stranger into his cadre and then being given the most senior appointment reserved for its member. It is difficult to hold that respondent No. 3 was not competent to take his grievance to the Service Tribunal. The cadre rules did form part of his terms and conditions of his service and a violation of the same could be agitated by him before the Service Tribunal.

8. As regards the merits of this appeal, it will be noticed that the Provincial Government itself realised the difficulty in posting the appellant as Chief Laboratory Technicians as he was not a member of the cadre to, which the post belonged. It was for this reason that he was first allowed to change the cadre with retrospective effect before his appointment was made. Now this was clearly a futile exercise as the appellant never held any post in the cadre of Laboratory Technician in the past. It is obvious that in order to be a member of a cadre, a civil servant must hold a post or a lien in a post in that cadre. Consequently despite the: decision of the Director permitting the appellant to change his cadre with retrospective effect, he could not be regarded as member of the cadre of Laboratory Technicians. The learned Tribunal was, therefore, justified in setting aside his appointment to a post reserved for the members of that cadre. 9.For the reasons stated above we find no merit in this appeal which is hereby dismissed. There will be no order as to costs. S. Q. Appeal dismissed.